Van Hong Pham v Taylor & Magistrates' Court of Victoria
[2002] VSCA 82
•21 May 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 5696 of 1999
| VAN HONG PHAM | Appellant |
| v. | |
| KENNETH IVAN TAYLOR - and – MAGISTRATES’ COURT OF VICTORIA | First Respondent Second Respondent |
| - and - | |
| GABRIEL KUEK | Appellant |
| v. | |
| KENNETH IVAN TAYLOR | First Respondent |
| - and - | |
| MAGISTRATES’ COURT OF VICTORIA | Second Respondent |
| - and - | |
| VAN HONG PHAM | Plaintiff/Third Respondent |
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JUDGES: | ORMISTON, PHILLIPS and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 May 2002 | |
DATE OF JUDGMENT: | 21 May 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 82 | |
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Courts – Practice and procedure – Summary offences – Two sets of charges in identical terms – Particulars refused – Claim of ostensible bias by magistrate – Election to be tried in County Court – No warrant for judicial review in the circumstances – Application for judicial review dismissed with costs against solicitor personally – Leave to plaintiff to appeal rescinded – Appeal by solicitor allowed.
| APPEARANCES: | Counsel | Solicitors |
| For the appellant Pham For the appellant Kuek | Mr. C. Maxwell Q.C. Mr. M. Heaton Q.C. | Kelvin R. Legg Access Law |
| For the respondent Taylor For the respondent Court | Mr. J.D. McArdle Q.C. Mr. S. Lee, Solicitor | Ms K. Robertson, Solicitor for Public Prosecutions Victorian Government Solicitor |
ORMISTON, J.A.:
I will ask Phillips, J.A. to give the first judgment in this matter.
PHILLIPS, J.A.:
These two appeals were heard together. The first, by one Van Hong Pham, is brought by leave against orders made in the Trial Division on 1 March 2000 when a judge dismissed the appellant's application by originating motion for, inter alia, relief in the nature of certiorari to quash certain decisions and rulings of the Magistrates' Court at Dandenong made on 7 and 9 June 1999. The second, by Mr Pham's solicitor, Gabriel Kuek, is against the orders made on 16 March 2000 when the trial judge, having dismissed the originating motion already mentioned, ordered Mr Kuek personally to indemnify "the applicants" (meaning, I think, the two defendants) in respect of their costs of the originating motion. The defendants were the informant and the Magistrates' Court of Victoria. The Court of Appeal by order added Mr Kuek as a party to the proceeding for the purpose of his appealing and gave him leave to appeal.
On 11 November 1998 the appellant Pham was charged in that he did at Springvale on 11 November 1998 traffick in a drug of dependence, heroin, and did possess a drug of dependence, heroin. (There was also a third charge but it is not presently relevant.) On 11 November 1998, Mr Pham participated in a record of interview in which, it is claimed, he made admissions.
On 5 March 1999, Mr Pham was charged again and, according to the charge sheets, it was that he did at Springvale traffick in a drug of dependence, heroin, and did at Springvale possess of a drug of dependence, heroin. These offences were charged as having occurred on 11 November 1999, but this was an obvious mistake and in due course it was duly corrected before the magistrate to 11 November 1998. Although then in terms the same as the charges laid on the previous 11 November, the charges laid on 5 March were attributable (according to the police brief which I shall mention later) to separate events on the same day. In respect of all charges, the
respondent Taylor was the informant.
It is unnecessary now to go into detail about the steps that followed before the charges came on for hearing in the Magistrates' Court. Suffice it to say that the matter was fixed for hearing on 7 June on an estimate of four days, Mr Pham having indicated that he would be asserting that the record of interview was the product of duress and the solicitor, Mr Kuek, having taken steps to obtain a response by Telstra to a summons he had served on it to produce documents relating to the time Mr Pham had spent in the police station on the occasion of that interview.
In brief, on 7 June Mr Perkins appeared as counsel to represent Mr Pham and objected to the magistrate sitting, first because the magistrate had dealt with the earlier application concerning the summons to Telstra to produce documents and, secondly, because he, the magistrate, had in 1996 heard and determined, adversely to him, a proceeding in which Mr Perkins had himself been charged with criminal offences. The magistrate declined to disqualify himself and Mr Perkins withdrew.
A number of applications followed on 7 June and in the days afterwards, including applications for adjournment so that new counsel could be briefed, applications to obtain a fuller response to the summons to witness served on Telstra and, indeed, debate over a later summons served on the Chief Commissioner of Police also to produce documents; and, importantly, applications for further and better particulars of the offences charged. The magistrate made rulings on the summonses that were adverse to Mr Pham and declined to adjourn the proceedings further. He also ruled against the applications for particulars, mainly , it would appear from the transcript, on the ground that, the police brief having been disclosed to the defendant, Mr Pham had all the information he needed to prepare his defence.
At that point, which occurred early in the hearing on 9 June, the magistrate had the charges read to Mr Pham and advised him of his right to have the charges heard before a judge and jury or, alternatively, dealt with summarily by him on that day. When asked which he preferred, Mr Pham said that he did not wish to have the matter proceed on that day, which was taken to be an election to have the matter tried in the County Court before judge and jury (and I use that expression for convenience). There the matters rest. They are, we were told from the Bar table, “in the committal stream" awaiting a committal hearing in the Magistrates' Court.
Meanwhile, on 9 June Mr Kuek had filed the originating motion to commence this proceeding, seeking judicial review and alleging a denial of natural justice on the part of the magistrate. This is the matter that came on for trial in March 2000, when the proceeding was dismissed. Apparently the matter was argued then as one of ostensible bias, counsel relying upon the various rulings made by the magistrate as to adjournment, particulars and the documents required on summons, as evidence of the bias alleged. His Honour rejected the submission that all of them, or any of them, justified a conclusion of such bias.
So far as Mr Pham's appeal is concerned, there is significant difficulty in our now dealing with his complaints by way of appeal. That is because the originating motion, which was dismissed below, sought judicial review in the nature of prerogative relief, but the Magistrates' Court, at least in the exercise of judicial functions, is now functus officio. Whether there was error or not made by the magistrate in the course of the hearing before him, I do not think that the Supreme Court should now be granting judicial review in the nature of prerogative relief when the proceeding below has ended and Mr Pham, having elected to proceed to a committal, will not be disadvantaged as matters have turned out during argument. Some suggestion was made in the course of argument that we might quash his election, but there must be difficulty there.
If the committal does not proceed, it will be because Mr Pham has chosen to have the charges heard summarily; for in the course of argument Mr McArdle, who appears for the informant, said that, provided that the choice is notified early enough, that will lead to a summary hearing - and, as it happens, a summary hearing before a different magistrate because the magistrate to whom objection was taken in June 1999 is no longer assigned to Dandenong. Thus, Mr Pham has the remedy in his own hands if he wishes still, as we are told, to have his case heard and determined in the Magistrates' Court and there is no call for intervention by way of judicial review (supposing that there was some basis for it).
Mr Maxwell remained concerned, however, about the need for particulars, lest the judgment delivered in the Trial Division be used hereafter as an authoritative ruling that no further particulars are needed of the charges now facing Mr Pham. I must say that, as matters stand, I should have thought some further particulars were needed, if only to differentiate between the charges filed on 11 November and those filed on the following 5 March and to indicate what provisions of the Drugs, Poisons and Controlled Substances Act 1981 were being called in aid by the prosecution. The obligation to provide particulars of time, place and manner was canvassed in Gigante v. Hickson[1], and this is not the occasion on which to explore the question further. As I say, Mr Maxwell's concern is that the judgment below not be used as authority against Mr Pham, if and when application for further and better particulars is made again. Again, Mr McArdle has helpfully said that any application made hereafter for particulars would be considered afresh and certainly the argument which we have heard thus far did suggest that particulars should be supplied. I do not, of course, embark upon any investigation of what particulars would satisfy the request.
[1][2001] 3 V.R. 296.
Nonetheless, it remains true that there is little, I think, that we can properly do by way of appeal, given the difficulties of identifying a proper basis for intervention by way of judicial review in the particular circumstances of this case. The notice of appeal sets out the orders which are sought on appeal in substitution for the order of dismissal made in the Trial Division and, as Callaway, J.A. pointed out in argument, all of those orders may now be said to be moot or, in relation to particulars, anticipatory, given that the informant (through counsel) accepts that Mr Pham can have the charges heard summarily before a different magistrate if he now signifies that wish, and does so promptly. In my view, the proper course in all the circumstances is therefore for us to rescind leave to appeal. Sanofi v. Parke Davis Proprietary Limited (No.1)[2]; Coles Myer Ltd. v. Bowman[3].
[2](1982) 149 C.L.R. 147 at 153.
[3][1996] 1 V.R. 457 at 460.
Mr McArdle was at pains to defend the magistrate's position in relation to the particulars, pointing to the delay before any request was made, the timing of the request on the first day of a four day fixture , the lack of specificity attending the request when it was made, and so on. It may well be that by reference to such considerations the magistrate's rejection of the request that was made on 7 June 1999 could be upheld, with the result that his Honour's view of the matter might also be sustainable, though not for the reasons given. By the same token, it should not be assumed from what I have just said that delivering the police brief to the defendant can never be a sufficient substitute for particulars of the charge; each case will depend upon its own facts. The magistrate considered that delivering the whole of the police brief was enough here, serving to afford the defendant detailed information about all of the evidence to be led by the prosecution, a view his Honour seemed to share. Yet this might be one of those cases in which to know the evidence to be led does not necessarily disclose the case to be made, and it is on that ground that further and better particulars were perhaps appropriate.
But we need not decide the question of the correctness or not of what was decided in the Magistrates' Court and on the application for judicial review: for if there is to be an exercise of summary jurisdiction afresh, the question of particulars can be dealt with as and when it arises - and that will almost certainly be in a different context, for I suppose that in the meantime some steps at least will be taken in that regard. I have said enough, however, to indicate that if leave to appeal is rescinded as I suggest, this Court is not thereby lending its authority to anything said in the reasons for judgment of the trial judge and what his Honour said, especially in relation to the particulars, should not be taken as authority for what is or might be appropriate should these charges now fall to be heard and determined summarily and the application for further and better particulars of the charges renewed.
As for Mr Kuek's appeal, that is simply disposed of. It is unclear to me what precisely were the orders made below in relation to costs, because the authenticated order is by no means clear in its terms. I think, however, that his Honour intended to order costs in favour of the defendants to the originating motion (the informant and the Magistrates' Court) and to further order that they be paid by the plaintiff's solicitor personally, Mr Kuek - and, it may be, because the authenticated order refers to the solicitor's obligation to "indemnify" the defendants, be paid by him on an indemnity basis.
Initially, there was no appearance before us on behalf of the Magistrates' Court: a letter had been sent to the Registry to indicate that the Magistrates' Court would take no part and would simply abide the result. The Court then pointed out that that was not altogether satisfactory because the Magistrates' Court had won an order for costs below and it was necessary to know how far, if at all, the Magistrates' Court sought to support that order. Accordingly, after the luncheon adjournment, a solicitor from the Victorian Government Solicitor’s office appeared for the Magistrates’ Court and made plain that no submissions were being put in relation to costs, either here or below, and in particular the Magistrates' Court did not apply for costs if the order for costs made below were set aside. On the other hand, Mr McArdle, for the informant, opposed intervention by this Court on the basis that, whether or not this Court would have seen fit itself to make the same order for costs as was made by the trial judge, it was not demonstrated that the exercise of discretion below had miscarried.
In my opinion, Mr McArdle's submission should be rejected. In his comprehensive reasons, the trial judge dealt with all eight events or circumstances relied upon before him to justify the submission that there had been ostensible bias in the magistrate's handling of the matter. One of those eight was the ruling in relation to particulars, a ruling which was attacked by the plaintiff, Mr Pham, as having been unjustified. On the contrary, said the judge, "the request for further particulars was fatuous"; indeed, his Honour said much the same thing of all other
the events and circumstances canvassed, and it was on that basis that he ordered costs against the solicitor personally. As I have already indicated, I cannot share his Honour's view that the request for particulars was fatuous. It may be that the magistrate's ruling against the request was no evidence of bias, and I am far from suggesting otherwise. But I do think that his Honour's discretion miscarried in that at least one of the factors upon which that exercise of discretion depended was flawed.
Accordingly, I would allow the appeal by Mr Kuek and set aside the order for costs made below. Nothing specific was put to us on behalf of the informant to persuade us to make again, in the exercise of our discretion, the unusual order for costs made against the solicitor personally. Nor do I see sufficient justification for the order made below. All counsel accepted that, if the order below was not to be remade, costs should have followed the event in the ordinary way. Accordingly, in lieu of the order for costs made below, I would order simply that the plaintiff pay the costs of the first defendant, the informant. No order for costs below should be made in favour of the Magistrates' Court as none is sought.
ORMISTON, J.A.:
I agree.
CALLAWAY, J.A.:
I also agree.
ORMISTON, J.A.:
The orders of the Court will be as follows, subject to anything that counsel may say.
Order on the appeal brought by Van Hong Pham that leave to appeal granted by this Court on 14 April 2000 be rescinded.
Order on the appeal brought by Gabriel Kuek that the appeal be allowed. Further order in that appeal that the orders of Nathan, J. made on 16 March 2000 be set aside and in lieu thereof order that the plaintiff pay the first-named defendant's costs of the proceeding.
Is there anything counsel wish to say about the orders?
[Discussion as to costs]
ORMISTON, J.A.:
I should add to the orders that we have already pronounced an order that in respect of the appeal brought by Van Hong Pham, there be no order for costs in relation to that appeal or in relation to the application before the Court on 14 April 2000.
[Further discussion as to costs]
ORMISTON, J.A.:
So on the appeal by Mr. Kuek we have to change the order in lieu in respect of costs, so it will read in the first place that the plaintiff pay the first-named defendant’s costs of the proceeding other than the costs of the hearing on 16 March 2000, and that the costs of the solicitor, Kuek, of and incidental to the hearing on 16 March be paid by the first and second defendants.
Then in relation to the costs of the appeal brought by Mr. Kuek, order that the first respondent pay the appellant’s costs of the appeal. Does that reflect what we have been talking about?
MR McARDLE:
Yes, and it reflects an acceptance, your Honours, that I can’t get the second respondent in for the costs of this appeal. I gather that reflects the views of the Court?
ORMISTON, J.A.:
You are content with that?
MR HEATON:
Thank you, Your Honours.
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Van Hong Pham v Taylor and Magistrates' Court of Victoria [2002] VSCA 82
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